The opinion
06/17/2021
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs November 17, 2020
STATE OF TENNESSEE v. GLENN BROWN AND THOMAS BYRD
Appeal from the Criminal Court for Knox County
No. 109768 Bobby R. McGee, Judge
___________________________________
No. E2019-01618-CCA-R3-CD
___________________________________
The Defendants, Glenn Brown and Thomas Byrd, were jointly tried before a Knox County
Criminal Court jury on a number of drug and gun-related offenses. At the conclusion of
the trial, both Defendants were convicted of possession with the intent to sell/deliver 0.5
grams or more of cocaine within 1000 feet of a school, possession with the intent to
sell/deliver a controlled substance analogue, and possession of marijuana. Defendant
Brown was alone convicted of the various gun-related charges, including employment of a
firearm during the commission of a dangerous felony having been previously convicted of
a felony. In this consolidated appeal, Defendant Byrd challenges the sufficiency of the
evidence in support of his felony convictions and argues that the trial court erred in
admitting evidence of his failure to contest the forfeiture of the large amount of cash seized
from him. Defendant Brown challenges the sufficiency of the evidence in support of his
felony drug and employment of a firearm during a dangerous felony convictions and argues
that the trial court erred in denying his motion to suppress the results of the traffic stop and
in issuing inconsistent oral and written jury instructions that prevented unanimity of the
verdicts. Following our review, we affirm the judgments of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
ALAN E. GLENN, J., delivered the opinion of the court, in which JAMES CURWOOD WITT,
JR., and D. KELLY THOMAS, JR., JJ., joined.
Gerald L. Gulley, Knoxville, Tennessee (on appeal) and Mary Ward, Knoxville, Tennessee
(at trial), for the appellant, Glenn Brown.
J. Liddell Kirk, Knoxville, Tennessee (on appeal) and Joshua Hedrick, Knoxville,
Tennessee, for the appellant, Thomas Lenwood Byrd.
Herbert H. Slatery III, Attorney General and Reporter; Renee W. Turner, Assistant
Attorney General; Charme P. Allen, District Attorney General; and Ta Kisha Fitzgerald,
Assistant District Attorney General, for the appellee, State of Tennessee.
OPINION
FACTS
On March 28, 2016, Defendant Brown was driving a silver Toyota Highlander at 38
miles per hour in a 25 mile per hour zone in north Knoxville with Defendant Byrd as his
passenger when he was stopped by a Knoxville police officer for speeding. Both men
appeared nervous, and Defendant Brown told the officer that he was frightened and
considering running. When the backup officer arrived, Defendant Brown told him that
there was a weapon inside the vehicle and gave the officer consent to search the SUV. The
officer found a loaded Smith and Wesson semi-automatic 9-milimeter handgun in the
center console area and an eyeglass case with crack and powder cocaine, another powder
that field tested as positive for methamphetamine, assorted loose pills, and marijuana
underneath the passenger seat. Defendant Byrd was carrying $1,520 in cash, and
Defendant Brown had $80 in cash. The Knox County Grand Jury subsequently returned a
fifteen-count indictment charging both Defendants with possession of 0.5 grams or more
of cocaine with the intent to sell and with the intent to deliver in a drug free school zone,
possession of a controlled substance analogue with the intent to sell and with the intent to
deliver, simple possession of marijuana, and four counts of possession of a firearm with
the intent to go armed during the commission of a dangerous felony. Defendant Brown
was charged alone with two counts of unlawful possession of a handgun by a convicted
felon and four counts of unlawful possession of a firearm with the intent to go armed during
the commission of a dangerous felony, having been previously convicted of a felony.
Motion to Suppress
On June 14, 2017, Defendant Brown filed a motion to suppress the results of the
traffic stop, arguing that the search was unconstitutional because the duration of the stop
exceeded that necessary to issue a speeding citation, and he was not advised of his Miranda
rights and was unaware he could refuse consent for the search.
At the suppression hearing, Officer Steve Kaufman of the Knoxville Police
Department (“KPD”) testified that at approximately 7:00 p.m. on March 28, 2016, he was
working radar enforcement in the north Knoxville area when he clocked a silver SUV
traveling 13 miles per hour over the posted speed limit of 25 miles per hour. He said he
-2-
pulled behind the vehicle and turned on his lights to initiate a stop. However, the vehicle
continued traveling another block and a half to two blocks before the driver pulled over.
Officer Kaufman testified that Defendant Byrd was in the passenger seat, and
Defendant Brown was in the driver’s seat. Defendant Byrd gave him an identification card.
Defendant Brown told him he did not have his driver’s license on him, but he informed
him that his name was “Jermaine Fields,” and he provided a date of birth. Officer Kaufman
stated that he instructed both men to remain in the vehicle and returned to his patrol car to
call in the traffic stop and to request backup. While he was on the radio, Defendant Byrd
exited the vehicle, and Officer Kaufman ordered him to get back inside. Defendant Brown
then exited the vehicle, looked at him, and said, “I’m scared. I’m thinking of running.”
Officer Kaufman said he responded by telling him to get back in the vehicle and that he
would work with him.
Officer Kaufman identified his patrol vehicle’s videotape of the stop and narrated
portions of it as it was played for the court. He testified that there was an open container
of alcohol in the vehicle and that Defendant Byrd, who appeared to be under the influence,
kept fidgeting, so he instructed him to sit with his hands on his knees where he could see
them. Officer Darren Carden arrived, and Officer Kaufman and Officer Carden
approached the vehicle, removed Defendant Brown, and handcuffed him before Officer
Carden took him to Officer Carden’s patrol vehicle. When Officer Carden informed him
that there was a gun inside the SUV, Officer Kaufman asked Defendant Byrd to step out,
handcuffed him, and placed him in the back of his own patrol vehicle.
Officer Kaufman testified that Officer Carden told him he had obtained Defendant
Brown’s consent to search the SUV. Officer Carden searched the vehicle while he was on
the radio checking the Defendants’ identifications. During the search, Officer Carden
found a gun in the center console area and narcotics inside an eyeglass case that was
underneath the front passenger seat. On cross-examination, he agreed that Defendant Byrd
was not free to leave after he was handcuffed and placed in the back of Officer Carden’s
patrol vehicle.
At the conclusion of the hearing, the trial court overruled the motion to suppress.
Among other things, the court found that the officers did not question Defendant Brown
but noted that, regardless, Miranda warnings are not implicated by Fourth Amendment
issues. The court further found that Defendant Brown not only gave consent but that
exigent circumstances justified the search of the vehicle.
Trial
-3-
At trial, Officer Kaufman reiterated much of his suppression hearing testimony
about the traffic stop that led to the discovery and seizure of the gun, narcotics, and cash.
He identified his dashcam video of the stop, portions of which were admitted into evidence,
and narrated the action as the video was played for the jury. He testified that Belle Morris
Elementary School was approximately a block and a half north of where Defendant Brown
pulled over, and he identified on a map the exact location of the stop. He said that
Defendant Byrd was “getting very agitated” and “digging in his pockets” while he was
seated in the SUV, which prompted Officer Kaufman to instruct him to sit still and keep
his hands where he could see them. He testified that Defendant Byrd informed him that he
had $3,000 cash on him that he had received from the sale of some automobile rims, but
officers found and seized a total of only approximately $1,600 in cash from the two men,
with $80 found on Defendant Brown and the rest on Defendant Byrd. Some of the cash
found on Defendant Byrd was in his wallet but the “vast majority was in a pants pocket.”
On cross-examination by Defendant Byrd’s counsel, Officer Kaufman
acknowledged that the vehicle belonged to Defendant Brown’s girlfriend and that
Defendant Byrd was cooperative and provided him with an identification card with his
correct name. On cross-examination by Defendant’s Brown’s counsel, he acknowledged
that Defendant Brown was cooperative as well, informing the officers about the gun,
providing his real name after initially giving a false name, and giving the officers consent
to search the vehicle. He further acknowledged that the console area where the gun was
found was accessible to both the driver and the passenger.
KPD Officer Darren Carden testified that when he arrived on the scene, he observed
both the driver and the passenger turned around in their seats “digging in the back of the
car a little bit.” He said he and Officer Kaufman approached the vehicle together, and he
asked Defendant Brown to step out of the vehicle. As he was walking the handcuffed
Defendant Brown to his patrol vehicle, Defendant Brown told him there was a gun in the
SUV, so he quickly patted him down, placed him in the back of his cruiser, and returned
to the SUV to inform his partner. After he assisted Officer Kaufman in taking Defendant
Byrd into custody, he returned to his cruiser and obtained Defendant Brown’s permission
to search the vehicle. He stated he found the loaded handgun in the open console area and
a small eyeglass case under the front passenger seat that contained “multiple substances of
narcotics.” He identified his patrol vehicle’s video recording of the stop and photographs
of the evidence, which were admitted into evidence and published to the jury.
On cross-examination, Officer Carden acknowledged that the handle of the gun was
oriented toward the driver’s seat with the barrel pointing toward the passenger’s seat. On
redirect examination, he testified that he found no drug paraphernalia in the vehicle.
-4-
KPD Sergeant J.D. Burrell testified that he was the patrol supervisor for the east
district and was called to the scene, per departmental policy, to double-check the count of
cash seized from the Defendants. According to the currency envelopes, they seized $1,624
from Defendant Byrd, consisting of two $50 bills, 72 $20 bills, one $10 bill, six $5 bills
and 44 $1 bills, and $87 from Defendant Brown, consisting of four $20 bills, one $5 bill,
and two $1 bills.
KPD Officer Jonathan Gomez, who was formerly a civilian evidence technician,
identified photographs he took of the objects found in the vehicle, including the black
Smith and Wesson 9-millimeter handgun loaded with eleven 9-millimeter rounds and the
narcotics found in the eyeglass case. He said he was unable to lift any prints from the
weapon or the ammunition. On cross-examination, he acknowledged that one of his
photographs showed a “Swisher Sweets” cigar wrapper inside the vehicle.
KPD Officer Krista Davies, who transported the narcotics to the police department,
testified that the evidence consisted of: a green leafy substance that appeared to be
marijuana; a hard, yellowish-white rock substance that appeared to be crack cocaine; a
brownish, powdery substance that field tested positive for methamphetamine; a white
powdery substance that field tested positive for cocaine, and three different kinds of loose
pills. She said she was present when Officer Kaufman had Defendant Byrd sign the
forfeiture paperwork for the cash, on the back of which is printed the process for contesting
the forfeiture. She explained that the process for contesting a forfeiture of property is to
file an appeal with the State, which triggers a hearing at which the individual is afforded
an opportunity to show that that he or she obtained the property through legitimate means.
In this case, the State kept the cash; to her knowledge, no forfeiture hearing was ever held.
On cross-examination, Officer Davies testified that a $350 fee is required to file a
petition to request a hearing. She acknowledged that the burden is on the individual to
show a legitimate source for the cash or other property. She believed, based on the amount
of drugs that was found in the vehicle, that the cash seized was money that had been
obtained from the sale of drugs. She acknowledged that Defendant Byrd had an additional
$400 in money orders on him that they did not seize. She further acknowledged that there
were unopened Swisher cigars in the vehicle and that it is possible for crack cocaine and
marijuana to be ingested by rolling it into a cigar to smoke.
Tennessee Bureau of Investigation (“TBI”) Special Agent Forensic Scientist Jacob
White, an expert in forensic chemistry, testified that he analyzed three of the eight
substances submitted to the laboratory and determined them to consist of 1.17 grams of
marijuana, 4.85 grams of cocaine base, and 1.21 grams of chloromethcathinone, an
analogue of the controlled substance methcathinone. He explained that an analogue is a
-5-
substance that is chemically structurally similar to another substance, requiring only
“minor small changes” to convert it into the other substance.
David Stuart Stills, a training sergeant with the Knoxville County School Division,
testified that Belle Morris Elementary School was an elementary school that was in
operation on March 28, 2016.
Donna Roach of the Knox County Geographic Information System identified a map
of the 1000-foot zone around Belle Morris Elementary School, which showed that the
location of the traffic stop was within 1000 feet of the school.
KPD Investigator Phillip Jinks, an expert in narcotics investigations, opined that the
controlled substances in the case, with the exception of the marijuana, were possessed for
resale. He explained in detail the basis for his opinion and the factors that indicated to him
that the drugs were possessed for resale, which included: the amount of controlled
substances; the large amount of cash, including the many $20 bills, which he said was the
cost of the typical “rock” of crack cocaine; the loaded weapon; the nervous actions of the
Defendants during the stop; and the lack of typical paraphernalia for ingesting the drugs.
He said the amount of marijuana found in the vehicle, along with the fact that it was
packaged in one single bag, indicated to him that it was for personal use.
Investigator Jinks estimated that the wholesale value of the crack cocaine was
approximately $300 to $500 but that it would bring $1000 if broken into tenth of a gram
rocks and sold individually on the street. He estimated the wholesale value of the powder
cocaine was approximately $300, but it would be worth more if sold individually in smaller
amounts. In his experience, there was a higher demand for crack cocaine, and he estimated
that if the powder cocaine were converted into crack cocaine, it would be worth
approximately $1,000 in a retail market. He said he was not familiar with the market value
of the methcathinone analogue, which was similar to what is known as “bath salts” or
“Molly,” but knew that there was a resale market for it. He explained that drug
manufacturers frequently changed the chemical structures of controlled substance
analogues in order to “skirt the law” and that it was difficult for him to keep up with the
current value.
Investigator Jinks also explained in some detail the forfeiture of drug-related cash
and property and the process for contesting the forfeiture. He said the individual contesting
the forfeiture has to pay a $350 cost bond to the Department of Safety when filing a petition
contesting the forfeiture, unless incapable of making the payment. He stated that if
incapable of paying, the individual can file an affidavit of indigency to have the cost bond
waived. According to his testimony, information about the affidavit of indigency was in
the notice from the Department of Safety that a forfeiture warrant has been issued.
-6-
On cross-examination, he acknowledged that the “green sheet” given to Defendant
Byrd by the arresting officer was not the official start of the Department of Safety’s
forfeiture process, which begins when the Department of Safety sends its notice to the
individual that forfeiture proceedings have been initiated. He conceded that the affidavit of
indigency was not on the “green sheet” but said the green sheet contained information
about the affidavit of indigency. To his knowledge, the officer did not explain to Defendant
Byrd what an affidavit of indigency was or how to file one. He also did not know if
Defendant Byrd ever received the Department of Safety’s official notice of forfeiture.
On further cross-examination, he acknowledged that $20 bills are common and the
denomination usually dispensed by bank ATMs. He also agreed that many Craigslist or
Facebook marketplace sales are, presumably, cash transactions. He acknowledged that the
narcotics found in the SUV were not broken down into the quantities that were typically
used for resale.
As its final evidence, the State introduced a stipulation of facts that Defendant
Brown, prior to March 28, 2016, had both a felony conviction for a drug offense and a
felony conviction involving violence.
Defendant Byrd testified that on March 28, 2016, he sold a set of rims for $1,600 to
a man who responded to his Facebook advertisement. He said he was at home counting
the money and separating the amount he owed for child support to the three mothers of his
children when his girlfriend got into an argument with him about his relationship with the
mothers of those children. To escape the conflict, he called his long-time friend, Defendant
Brown, to come pick him up from his home. He stated that he did not have any drugs or
firearms on him and was unaware of the gun and the drugs in Defendant Brown’s vehicle.
He said he gave the officer his real name and became very uncomfortable when he heard
Defendant Brown give a false name. He got out of the vehicle because Defendant Brown
informed him that he was considering fleeing in the vehicle, and he wanted no part of that
situation. He was agitated during the traffic stop and his subsequent arrest because he was
not involved with the gun or the drugs and had no prior knowledge that they were in the
vehicle.
On cross-examination, he acknowledged that he had been convicted of criminal
impersonation in Knox County on May 10, 2007. He testified that he was unfamiliar with
cocaine, but he acknowledged that he had previously been convicted of possession of
cocaine. He said he never received any forfeiture notice from the Department of Safety.
Following deliberations, the jury convicted Defendant Brown of all the indicted
offenses. The jury convicted Defendant Byrd of all the indicted drug offenses but acquitted
-7-
him of the gun offenses. After merging the various counts based on alternate theories of
the same offense, the trial court sentenced Defendant Byrd to an effective fifteen-year
sentence in the Department of Correction and sentenced Defendant Brown to an effective
thirty-year sentence in the Department of Correction.
I. Sufficiency of the Evidence
Both Defendants challenge the sufficiency of the evidence in support of their felony
drug convictions. In addition, Defendant Brown, without any argument, asserts that the
evidence was insufficient to sustain his convictions for employing a firearm during the
commission of a dangerous felony.
When the sufficiency of the evidence is challenged, the relevant question of the
reviewing court is “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979); see also Tenn.
R. App. P. 13(e) (“Findings of guilt in criminal actions whether by the trial court or jury
shall be set aside if the evidence is insufficient to support the findings by the trier of fact
of guilt beyond a reasonable doubt.”); State v. Evans, 838 S.W.2d 185, 190-92 (Tenn.
1992); State v. Anderson, 835 S.W.2d 600, 604 (Tenn. Crim. App. 1992).
All questions involving the credibility of witnesses, the weight and value to be given
the evidence, and all factual issues are resolved by the trier of fact. See State v. Pappas,
754 S.W.2d 620, 623 (Tenn. Crim. App. 1987). “A guilty verdict by the jury, approved by
the trial judge, accredits the testimony of the witnesses for the State and resolves all
conflicts in favor of the theory of the State.” State v. Grace, 493 S.W.2d 474, 476 (Tenn.
1973). “A jury conviction removes the presumption of innocence with which a defendant
is initially cloaked and replaces it with one of guilt, so that on appeal a convicted defendant
has the burden of demonstrating that the evidence is insufficient.” State v. Tuggle, 639
S.W.2d 913, 914 (Tenn. 1982).
Viewed in the light most favorable to the State, the evidence was sufficient to sustain
the convictions. Neither Defendant challenges the location of the traffic stop in a drug free
school zone or the amount of drugs found in the vehicle. In essence, each Defendant simply
claims ignorance of the drugs and gun and argues that the proof shows that they belonged
to the other man alone. In support, Defendant Byrd points to evidence that the vehicle
belonged to Defendant Brown’s girlfriend, that Defendant Brown gave a false name and
indicated a desire to run, and that the gun was positioned with its handle toward the driver’s
seat. He also cites his explanation for how and why he had such a large sum of cash on his
person. Defendant Brown, in turn, points to the large amount of cash found on Defendant
Byrd and the fact that the drugs were found underneath the passenger seat of the vehicle to
-8-
argue that there was no proof that he possessed the drugs himself or acted with any intent
to promote or assist Defendant Byrd in the sale of the drugs or to benefit from the proceeds
of Defendant Byrd’s drug sales. Defendant Brown argues that the proof, at most, supports
a conviction for facilitation. The jury, however, heard all the proof and was instructed on
the lesser offense of facilitation and yet convicted both Defendants of the indicted drug
offenses. The jury acquitted Defendant Byrd of the gun offenses but convicted Defendant
Brown of those offenses. By its verdicts, the jury obviously found that both men were in
possession of the drugs together, that their possession of the drugs was with the intent to
sell or deliver them, and that the gun found in the vehicle was Defendant Brown’s alone
and was not used by Defendant Byrd. There was sufficient proof from which the jury could
make these determinations. Accordingly, we affirm the convictions.
II. Denial of Motion to Suppress
Defendant Brown contends that the trial court erred in denying his motion to
suppress the results of the traffic stop. He argues that the search was unconstitutional
because his consent was obtained in response to questioning by the officer after he had
been placed in custody but had not been advised of his Miranda rights against self-
incrimination. The State argues that the officer’s request for consent to search the vehicle
was not an interrogation, that Defendant Browns’s consent to the search was not an
incriminating admission under Miranda, and that the officer was not required to issue
Miranda warnings before asking basic investigatory questions of the Defendants.
When this court reviews a trial court’s ruling on a motion to suppress evidence,
“[q]uestions of credibility of the witnesses, the weight and value of the evidence, and
resolution of conflicts in the evidence are matters entrusted to the trial judge as the trier of
fact.” State v. Odom, 928 S.W.2d 18, 23 (Tenn. 1996). The party prevailing at the
suppression hearing is afforded the “strongest legitimate view of the evidence and all
reasonable and legitimate inferences that may be drawn from that evidence.” State v.
Keith, 978 S.W.2d 861, 864 (Tenn. 1998). The findings of a trial court in a suppression
hearing are upheld unless the evidence preponderates against those findings. See id. The
application of the law to the facts found by the trial court is a question of law and is
reviewed de novo. State v. Walton, 41 S.W.3d 75, 81 (Tenn. 2001); State v. Crutcher, 989
S.W.2d 295, 299 (Tenn. 1999); State v. Yeargan, 958 S.W.2d 626, 629 (Tenn. 1997).
Both the United States and Tennessee constitutions prohibit unreasonable searches
and seizures. U.S. Const. amend IV; Tenn. Const. art. I, §7. Generally, “under both the
federal and state constitutions, a warrantless search or seizure is presumed unreasonable,
and evidence discovered as a result thereof is subject to suppression unless the State
demonstrates that the search or seizure was conducted pursuant to one of the narrowly
defined exceptions to the warrant requirement.” State v. Yeargan, 958 S.W.2d 626, 630
-9-
(Tenn. 1997). The State has the burden to demonstrate, by a preponderance of the
evidence, that a warrantless search falls under one of the exceptions to the warrant
requirement. State v. Harris, 280 S.W.3d 832, 839 (Tenn. Crim. App. 2008).
Exceptions to the warrant requirement include consent to search, search incident to
a lawful arrest, evidence in plain view, hot pursuit, exigent circumstances, and consent to
search. State v. Berrios, 235 S.W.3d 99, 104 (Tenn. 2007).
The consent exception applies when an individual voluntarily consents to a
search. State v. Reynolds, 504 S.W.3d 283, 306-07 (Tenn. 2016) (citing Schneckloth v.
Bustamonte, 412 U.S. 218, 219 (1973); Berrios, 235 S.W.3d at 109. The State has the
burden to prove that consent was freely and voluntarily given. Schneckloth, 412 U.S. at
222. “The pertinent question is . . . whether the [individual’s] act of consenting is the
product of an essentially free and unconstrained choice. If the [individual’s] will was
overborne and his or her capacity for self-determination critically impaired, due process is
offended.” State v. Cox, 171 S.W.3d 174, 185 (Tenn. 2005) (citing Schneckloth, 412 U.S.
at 225-26). Among the factors to be considered are the time and place of the encounter,
level of hostility between the police and the individual, number of officers involved, and
the individual’s “age, education, intelligence, knowledge, maturity, sophistication,
experience, prior contact with law enforcement personnel, and prior cooperation or refusal
to cooperate with law enforcement personnel.” Cox, 171 S.W.3d at 185 (internal
quotations omitted).
There are three levels of police-citizen interactions: (1) a full-scale arrest, which
must be supported by probable cause; (2) a brief investigatory detention, which must be
supported by a reasonable suspicion, based upon specific and articulable facts, of criminal
wrong-doing; and (3) a brief “encounter” which requires no objective justification. State
v. Day, 263 S.W.3d 891, 901 (Tenn. 2008).
On appeal, Defendant Brown does not challenge the officer’s basis for the stop or
the duration of the stop, nor that he gave the officer consent to search the vehicle. Instead,
he argues only that he was under custodial arrest when handcuffed and placed in the back
of the patrol vehicle and should have been issued Miranda warnings before the officer
asked for his consent for the search.
Both the United States and Tennessee Constitutions protect against compelled self-
incrimination. See U.S. Const. amend. V; Tenn. Const. art. I, § 9. The State is, therefore,
prohibited from using statements made by an accused during custodial interrogation unless
the accused has previously advised of his or her constitutional rights to remain silent and
to an attorney, and has knowingly, voluntarily, and intelligently waived those rights.
See Miranda v. Arizona, 384 U.S.436,444 (1966).
- 10 -
We agree with the State that the officer’s asking for consent to search the vehicle
was not a “custodial interrogation,” and Defendant Brown’s response giving him
permission was not an “incriminating statement.” The trial court found that Defendant
Brown gave the officer consent to search the vehicle. Implicit in the trial court’s ruling is
a finding that the consent was voluntary. The evidence does not preponderate against these
findings. We conclude, therefore, that the trial court properly denied the motion to
suppress.
III. Jury Instructions
Defendant Brown also contends that the trial court erred by giving the jury
“inconsistent oral and written instructions that prevented jury unanimity on several
counts.” [Brief, 16 (header)]. The State responds that the Defendant is not entitled to any
relief on the basis of this issue, noting that although the trial court initially gave the jury an
incorrect oral instruction in counts 3 and 4, it immediately corrected its mistake after
reading the written instructions, so that both the oral and written instructions were
consistent.
It is well settled that a defendant has a constitutional right to a complete and correct
charge of the law, so that each issue of fact raised by the evidence will be submitted to the
jury on proper instructions.” State v. Dorantes, 331 S.W.3d 370, 390 (Tenn. 2011); see
also State v. Farner, 66 S.W.3d 188, 204 (Tenn. 2001) (citing State v. Garrison, 40 S.W.3d
426, 432 (Tenn. 2000)). Accordingly, trial courts have the duty to give “a complete charge
of the law applicable to the facts of the case.” State v. Davenport, 973 S.W.2d 283, 287
(Tenn. Crim. App. 1998) (citing State v. Harbison, 704 S.W.2d 314, 319 (Tenn. 1986)).
“Whether jury instructions are sufficient is a question of law appellate courts review de
novo with no presumption of correctness.” State v. Clark, 425 S.W.3d 268, 295 (Tenn.
2014).
The record reflects that the trial court initially erroneously instructed the jury with
respect to counts three and four that the Defendants were charged with knowingly selling
and delivering a controlled substance analogue, rather than with possession with the intent
to sell or deliver. After that mistake, the trial court issued corrected instructions, informing
the jurors it had made a change to the instructions in counts three and four and that the
correct instructions were marked on the written set of instructions that the court was
sending with them as they retired to deliberate.
We agree with the State that the trial court’s correction of its initial mistake was
sufficient to ensure that the jury was properly instructed on the law. We conclude,
therefore, that Defendant Brown is not entitled to relief on the basis of this issue.
- 11 -
IV. Defendant Byrd’s Failure to Contest Forfeiture Proceedings
Defendant Byrd contends that the trial court erred in allowing the State to question
witnesses about the forfeiture proceedings and whether Defendant Byrd contested the
forfeiture of his cash to the State. He argues that evidence related to a separate civil
forfeiture proceeding was not relevant to the issues in his criminal trial and that, even if
marginally relevant, its probative value was substantially outweighed by the danger of
unfair prejudice and misleading the jury.
In considering this issue, we apply the general rule that “admission of evidence is
entrusted to the sound discretion of the trial court, and a trial court’s ruling on evidence
will be disturbed only upon a clear showing of abuse of discretion.” State v. Robinson,
146 S.W.3d 469, 490 (Tenn. 2004). A trial court’s exercise of discretion will only be
reversed on appeal if the court “‘applied an incorrect legal standard, or reached a decision
which is against logic or reasoning that caused an injustice to the party complaining.’” Id.
(quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)). When determining
admissibility, a trial court must first determine if the evidence is relevant. Id.; Tenn. R.
Evid. 402. If the court determines that the evidence is relevant, it must then determine
whether its probative value is “substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations of undue delay, waste
of time, or needless presentation of cumulative evidence.” Tenn. R. Evid. 403; Robinson,
146 S.W.3d at 490.
The record reflects that Defendant Byrd raised an objection when the prosecutor
began questioning Officer Davies about the forfeiture process. The trial court overruled
the objection, noting that the rules of evidence are broad and that it would be for the jury
to determine what inferences to draw from the evidence.
We find no abuse of discretion in the trial court’s ruling. The evidence was relevant
to the issue of whether the drugs found in the vehicle were possessed with the intent to sell
and deliver them, and its probative value was not “substantially outweighed” by the danger
of unfair prejudice or misleading of the jury. With respect to this latter point, we note that
counsel for Defendant Byrd was successful in eliciting admissions from the State’s
witnesses about the cost involved in filing a petition to contest the forfeiture and the fact
that the sheet provided by the officer did not include an affidavit of indigency. Investigator
Jinks also acknowledged that he had no idea if Defendant Byrd received notice from the
Department of Safety of the forfeiture proceedings, and Defendant Byrd testified that he
did not. Defendant Byrd is not entitled to relief on the basis of this issue.
CONCLUSION
- 12 -
Based on the foregoing authorities and reasoning, we affirm the judgments of the
trial court.
____________________________________
ALAN E. GLENN, JUDGE
- 13 -